The Volokh Conspiracy
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Could the Supreme Court Decide Moore v. Harper on Statutory Grounds?
An amicus brief by Professor Derek Muller suggests the justices need not confront the "Independent State Legislature" doctrine head on.
In December the Supreme Court will hear argument in Moore v. Harper, in which the justices have been asked to determine whether state courts may revise and redraw congressional districts to ensure compliance with state constitutional requirements. The petitioners argue such actions by state courts infringe upon the authority of state legislatures under Article I, section 4 of the Constitution. This argument, relying on what is often referred to as the "independent state legislature doctrine," has sparked concern that (Republican) state legislatures could adopt restrictive voting laws and extreme gerrymanders, even where doing so could transgress state constitutions (or, at the very least, state court interpretatins of state constitutional requirements).
Article I, section 4 reads as follows:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
(There is also similar language concerning the selection of electors in Article II, section 1.)
Most of the debate over (and briefing in) Moore v. Harper focuses on the first part of Article I, section 4, and the reference to the power of the state legislature. Less attention as been focused on the remaining text, which grants power to Congress, and how this may hold the key to resolving Moore v. Harper and perhaps avoiding the need for the Court to resolve whether there is an independent state legislature doctrine and, if so, what it would entail.
Iowa law professor Derek Muller makes this argument in an amicus brief he has filed in Moore, in which he suggests that the easiest way to resolve Moore is to focus on how Congress has already exercised its Article I, section 4 power.
Here is the summary of his argument:
The petition for certiorari in this case presents the question whether the phrase "Legislature thereof" in the Elections Clause of the Constitution bars state courts from regulating the contours of Congressional redistricting pursuant to state constitutions. But Congress has spoken, too. It has regulated the manner of drawing congressional districts by federal statute. See 2 U.S.C. § 2c. Congressional redistricting in a State now takes place pursuant to this federal statutory directive, which contemplates a role for state courts applying state constitutions. This case, therefore, can and should be resolved by analyzing § 2c as a proper exercise of Congress's power under Article I, § 4 of the Constitution. The lower court did not address that question, which would obviate the need to address the broader issue raised by the petition. The North Carolina Supreme Court's decision should be affirmed on this alternative ground.
Muller has more to say about the brief at the Election Law Blog.
Resolving Moore on these grounds would enable the Court to avoid resolving a weighty constitutional issue unnecessarily, which the Court usually prefers to do. Among other things, it would enable the Court to sidestep the thorny question of how to understand the proper relationship between state legislatures and state courts in the context of election law. While there are serious questions as to whether Article I, section 4 should be understood to allow state legislatures to act independently of state constitutional constraints, there are also serious questions as to whether state constitutions were understood to empower state courts to enforce such limitations on state legislatures (as Muller discusses in this post). After all, Baker v. Carr and its state analogs can hardly be said to reflect originalist impulses.
If the Court resolves Moore on statutory grounds, as Muller suggests, the result may be anticlimactic, but that might be a feature, not a bug.
